Guarantee of employment, as provided for in various circumstances under Brazilian labor law, aims to protect employees in situations of increased vulnerability — such as those serving in roles representing workers (e.g., members of internal accident prevention commissions and union leaders), during pregnancy, or following workplace accidents.
This legal protection does not prevent the termination of an employee with guarantee of employment for cause.
However, precisely because of the legal protection afforded to employees with guarantee of employment, the factual and evidentiary elements supporting a for cause termination are typically subject to more stringent judicial scrutiny.
Therefore, whether the process involves a preliminary inquiry or a formal internal investigation, the termination for cause in these cases requires that the investigation into the serious misconduct be conducted with even greater care and rigor, in order to reduce legal risks and ensure the procedure’s legitimacy.
In this context, it is essential that companies have structured mechanisms and processes in place to conduct investigations — from the receipt of the complaint to the fact-finding stage.
One example that illustrates the need for such diligence and familiarity with applicable legislation is Law No. 14.457/22. This law mandates that companies with an Internal Commission for the Prevention of Accidents and Harassment (CIPA) establish procedures for:
- receiving and monitoring complaints, for the purpose of fact-finding; and
- applying administrative sanctions, where appropriate, to those directly or indirectly responsible for acts of sexual harassment and violence.
The law also guarantees the anonymity of the complainant, without impeding the applicable legal procedures.
Additionally, in light of ESG principles—particularly the “Social” and “Governance” pillars — it is increasingly common for companies to rely on external legal counsel to assist in conducting, alongside internal teams, inquiries and investigations into employee misconduct.
This legal support is essential not only to ensure impartiality in the investigation but also to provide technical guidance to the company regarding the existence (or absence) of elements that justify a potential termination for cause or the application of other disciplinary measures.
It is important to note that the conclusion of an investigation does not always result in termination for cause. In many cases, the facts uncovered suggest that alternative corrective measures — such as warnings, trainings, or other actions aimed at preventing future incidents and developing the competencies of the employees involved — are sufficient. Furthermore, in certain cases, the law requires the filing of a judicial inquiry to investigate serious misconduct.
It is also worth emphasizing that dismissing employees with guarantee of employment without properly investigating the alleged misconduct exposes the company to significant risks, such as:
- reinstatement of the employee, with payment of wages due since the termination;
- liability for moral damages; and
- investigations by the Labor Public Prosecutor’s Office and penalties imposed by the Ministry of Labor.
Another critical aspect that must not be overlooked: an employer’s failure to act upon received complaints or facts of which it becomes aware — even when involving employees with guarantee of employment — may be interpreted by the judiciary as complicity or negligence. This can, for instance, directly influence the assessment of moral damages in labor lawsuits.
Therefore, whether due to legal obligations or the importance of corporate compliance, internal investigations are a cornerstone for detecting and correcting misconduct. In this context, specialized legal support proves to be a strategic asset to ensure the legitimacy of the investigation, the proper classification of conduct, and the adoption of proportionate and legally sound measures.
